Family Law FAQs: What is an Unacceptable Risk in Family Law?

Clarity Family Lawyers Blog Parenting Arrangements And The Best Interests Of The Child

In family law, the concept of “unacceptable risk” plays a crucial role in decisions regarding parenting arrangements. This legal standard is vital for ensuring the safety and well-being of children, guiding parents and legal professionals through the complexities of the family law system.

In this edition of “Family Law FAQs” we are aiming to help you understand what constitutes an unacceptable risk family law in Australia.


Parenting Arrangements and the Best Interests of the Child

At the heart of family law lies the fundamental principle of ensuring the best interests of the child, particularly when determining parenting arrangements. This standard is governed by two primary considerations:

  • Meaningful Relationship: The benefit of the child maintaining a meaningful relationship with both parents.
  • Protection from Harm: The need to protect the child from any form of physical or psychological harm, such as family violence.

These considerations guide the family court in making decisions that balance the child’s safety with the preservation of parental bonds. Of these considerations, the need to protect a child from harm is given more weight.

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What is an Unacceptable Risk?

An “unacceptable risk” in family law refers to a situation where a child’s placement with a parent might lead to physical or psychological harm, despite the potential benefits of a meaningful relationship with that parent. The Family Law Act 1975 emphasises the need to prioritise the child’s safety above all, making it a key aspect of family law proceedings.

Isles vs Nelissen: A Case Study

The case of Isles vs Nelissen is a landmark decision that provides crucial insights into how family courts handle the concept of unacceptable risk. In this case, the primary issue was whether the father’s involvement in his child’s life posed an unacceptable risk of harm that could potentially outweigh the benefits of maintaining a relationship with him.

  • Background of the Case: The mother raised concerns about sexual abuse allegedly perpetrated by the father. The family court was tasked with evaluating these claims to determine the validity and potential impact on the child.
  • Legal Challenges: The case was complicated by the need for the court to make a decision based on allegations without conclusive proof. The court had to consider the severity of the allegations and the evidence presented, which included testimonies and psychological evaluations.
  • Decision Process: The court applied the “unacceptable risk test,” which involves assessing whether there is a risk of harm to the child that is substantial enough to preclude any parental contact. The court had to balance this risk against the statutory requirement for a child to have a meaningful relationship with both parents, as stipulated by the Family Law Act.
  • Outcome: Ultimately, the court decided that while there were concerns, the evidence did not reach the threshold necessary to completely restrict the father’s access to the child. Instead, the court ordered supervised visits, determining that this measure would adequately mitigate any potential risk while maintaining the child’s relationship with their father.

This case underscores the complexities involved in applying the concept of unacceptable risk and demonstrates the court’s careful approach to balancing child safety with maintaining parental relationships. It highlights the court’s reliance on a thorough assessment of all available evidence to make a decision that prioritizes the child’s best interests while addressing potential risks.

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How We Can Help

At Clarity Lawyers, we specialise in navigating complex family law matters, particularly those involving the safety of children:

  • Expert Legal Advice: Our team is adept at providing prompt legal advice to ensure that all parenting arrangements meet legal standards and truly serve the best interests of the child.
  • Mitigating Risks: We help clients develop strategies to adequately mitigate risks, ensuring that any parenting plan is safe, sound, and legally defensible.

Understanding the concept of unacceptable risk is crucial for anyone involved in family law disputes, especially when children’s safety is at stake. By focusing on the best interests of the child and carefully assessing any potential risks, parents and courts can make informed decisions that protect children from harm.

If you are dealing with a situation that might involve unacceptable risks to your child, it’s essential to obtain prompt legal advice. Contact Clarity Lawyers today for comprehensive support and expert guidance.

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Samantha Miller

Samantha has been a lawyer since 2001 having followed in the steps of her father, grandfather, great-grandfather and great-great-grandfather. No one can say she didn’t know what she was getting into!

Initially admitted in 2001 as a solicitor in NSW and Australia, Samantha moved to the UK where she was admitted as a solicitor in England and Wales in 2002. After working in several different areas of the law in large London firms, she determined that family law was her calling and hasn’t looked back.


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